The TROL (Targeting Roguexe and Opaque Letters) Act of 2014 (PDF), which passed by a 13-6 vote yesterday, is modest in scope. It only targets patent trolls that send out "demand letters" that some believe are misleading. The bill would make the act of sending a patent demand letter "in bad faith" punishable as an "unfair or deceptive act" under the FTC Act.

Sending a letter would only be a crime if the letter met certain conditions, such as attempting to assert an invalid patent.

Even with that narrow focus, some reformers believe the bill leaves trolls too much room to maneuver. They say it could take away power from law enforcement agencies that are already looking into or taking action against trolls, including the Federal Trade Commission and states attorneys general.

Several states have already pushed forward with their own consumer-protection laws that target patent demand letters, and more are likely on the way. The TROL Act would pre-empt those laws—as well as the active debate going on in statehouses about the damage caused by trolls.

"The TROL Act would actually empower trolls and insulate abusive conduct," said Ed Black, president of the Computer & Communications Industry Association, which supported more widespread reforms. "That's why patent trolls are supporting it, and those like us who want real reforms are not."

Groups that pushed hard to kill the more wide-ranging Innovation Act have praised the TROL Act as being appropriately targeted. The bill "sensibly targets abusive demand letter practices while respecting legitimate patent-related communications, which are integral to the functioning of the patent system," wrote Innovation Alliance Director Brian Pomper in a letter to the House Energy & Commerce Subcommittee.

Earlier this week, Senate Judiciary Chairman Patrick Leahy gave an interview about the failure of patent reform to his hometown paper, the Burlington Free Press. He said he was "furious with what happened" and confirmed it was Reid who wouldn't let the legislation come to the Senate floor.

"I think that's wrong, but I'm not going to give up," he added.

Worse than nothing?

Only two Democrats on the subcommittee voted in favor of the TROL Act. Those who opposed mainly did so because it was too weak and could actually hamper FTC and state efforts to crack down.

"There are major problems that make this bill, as I see it, unworkable," said the committee's ranking Democrat, Rep. Henry Waxman (D-CA), according to a report in The Hill.

Passing the TROL Act would give "an excuse for the Senate not to act on the comprehensive bill," said Rep. Peter Welch (D-VT), according to National Journal.

The CCIA's patent counsel, Matt Levy, said the bill was "a sincere attempt to rein in patent trolls," but that at the end of the day the TROL Act was a "well-intentioned, but dangerous, bill."

The Main Street Patent Coalition, a broad range of business groups that had pushed for the Innovation Act, sent a letter to the subcommittee asking for the bill to be improved before enactment. As it is, the bill diverges from traditional consumer protection law, which simply bans deceptive activities, explained the Main Street Patent Coalition in a letter to the subcommittee. "By requiring the FTC to prove a troll's bad faith, the bill seems likely to make enforcement against trolls harder rather than easier."

Not every pro-reform group is opposed.

"Simply by requiring that demand letters identify the infringing activity and the patent and claim infringed, the new law should help curb abusive patent troll practices," said App Developers Alliance President Jon Potter, who supports more comprehensive patent reform as well.

The type of trolls that send out thousands of demand letters have earned a special ire from Congress over the course of the last year. In a debate held by her subcommittee, Sen. Claire McCaskill called the letters "scams" and the entities that send them out "bottom feeders."

Often-cited cases include MPHJ Technology, which sent out thousands of letters to small businesses asking them to pay $1,000 per employee for using scanners; and Innovatio IP Ventures, which sent out more than 13,000 letters to chain hotels and coffee shops asking them to pay thousands for a license to use off-the-shelf Wi-Fi routers.

MPHJ has come under legal attack, and it's wrapped up in simultaneous litigation against the FTC as well as attorneys general in Vermont and Nebraska.

Large router companies intervened in Innovatio's case to prevent lawsuits against their customers. In February, Cisco reached a deal to pay Innovatio $2.7 million, or 3.2 cents per router.